Thursday, August 12, 2010

Legal Procedures 23: Default or failure to answer

Free PDF legal procedures default failure to file AnswerNote: Please surf to the complete list of available PDFs on legal procedures in criminal and civil cases.

[1] If the defendant fails to file his Answer within the prescribed period of time, then the plaintiff may file a motion, with due notice to the defendant, asking the court to declare the defendant in default. (Once declared in default, the defendant cannot participate in the hearings but he is entitled to all notices.)

[2] Defaults are not allowed in legal separation, annulment, or declaration of the nullity of marriage. Please read the related post What happens in an annulment case if the respondent fails to file an Answer?

[3] In cases falling under the Rules on Summary Procedure, there is no declaration of default. If the defendant or respondent fails to file his Answer, then the complainant or petitioner can ask the court to render judgment.

[4] Effect of a partial default - when a complaint states a common cause of action against several defendants, some of whom answer and the others do not, but the answer alleges a common defense, the court shall try the case against all upon the answer thus filed and render judgment

[5] A judgment rendered against a party declared in default shall not exceed the amount or be different in kind from that prayed for, nor award unliquidated damages.

[6] Why do people fail to file their Answer?

A. Some people do not understand how the deadline set by the court for filing an Answer is computed. Normally, the court gives a fifteen-day period from the receipt of the summons for the filing of the Answer. The term “day” refers to calendar days, meaning, holidays and weekends are counted. If the last day falls on a holiday or a weekend, the Answer can be filed on the next working day.

B. Some people think that if they refuse to receive the summons from the court, the process will not proceed. This is wrong. If the person named as defendant or respondent in the summons does not want to accept it, the court sheriff or process server will “tender” the summons. The summons is considered as having been served on the defendant or respondent. The court sheriff or process server will then issue a “return” or certificate that he tendered the summons to the defendant or respondent. The period for filing the Answer thus begins from the time the summons was tendered.

C. Some people out of fear, ignorance, etc. do not give any attention to the summons. When they do consult a lawyer, it is usually after the period for filing the Answer has already lapsed.
Remedies of a party declared in default

A. If the court grants the motion to declare the defendant in default is granted:
  • The court issues an order of default and renders its judgment, unless it requires the plaintiff to submit his evidence (in ex-parte proceedings before the court itself or a commissioner).
  • Before the judgment is rendered, the defendant may file a motion under oath to set aside the order of default upon proof that his failure to answer was due to fraud, accident, mistake or excusable neglect (also known as FAME), and that he has a meritorious defense.
B. If the defendants motion to set aside the order of default is denied, then the plaintiff presents his evidence ex-parte.
  • If the plaintiff proves his allegations, then the court renders judgment by default.
  • (The defendant however still has some remedies available in this kind of situation)
  • If the plaintiff is not able to prove his allegations, then the court dismisses the case.
C. The order of default may be set aside on terms imposed by the judge. The defendant then files his answer. The case is then set for pre-trial (upon motion of the plaintiff).

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